Moody v The King
[2025] NZHC 2004
•21 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-151, 152, 153
[2025] NZHC 2004
BETWEEN BENJAMIN JAMES MOODY
Appellant
AND THE KING
Respondent
Hearing: 17 July 2025
Appearances: A J McKenzie for Appellant
A M Harvey for Respondent
Judgment: 21 July 2025
JUDGMENT OF EATON J
(appeal against sentence)
MOODY v R [2025] NZHC 2004 [21 July 2025]
Introduction
[1] Benjamin Moody was sentenced to 21 months’ imprisonment after pleading guilty to charges of driving contrary to the terms of an alcohol interlock licence (aggravated),1 operating a vehicle recklessly,2 failing to stop for flashing red and blue lights (aggravated),3 breach of community work,4 conversion of a motor vehicle5 and common assault.6 He appeals his sentence solely on the basis that he should have been granted leave to apply for home detention.
Facts
Conversion of a motor vehicle and common assault
[2] On 9 March 2024, the victim was at Mr Moody’s address. Mr Moody asked the victim to attend the Mongols Gang Pad in Burnham with him for some drinks. The victim agreed. They returned to Mr Moody’s address at midnight, and the victim advised Mr Moody he was going to sleep in his Ute. Mr Moody punched the victim in the nose, causing it to start bleeding, and asked the victim for his car keys. The victim obliged, fearing he would be assaulted again, and Mr Moody left the address.
[3] Mr Moody’s co-defendant, Mr Taylor, a prospect of the Mongols gang, arrived at the address shortly before Mr Moody returned. Mr Moody punched the victim multiple times. The victim tried to leave the address but was followed by the defendants. Mr Moody told the victim to have a shower and go to bed.
[4] The next morning, the victim woke up and asked Mr Moody for his car keys. Mr Moody told him he was not getting them back and the victim left before returning later in the day to get his keys. Mr Moody again told the victim he was not getting them back as he had “disrespected the Mongol Nation”. Mr Moody’s co-defendant told the victim he might get his vehicle back if he drove it to the Mongols Pad and
1 Land Transport Act 1998, ss 32(1)(b) and 32(4) — maximum penalty two years’ imprisonment or
$6,000 fine.
2 Land Transport Act s 35(1)(a) — maximum penalty three months’ imprisonment or $4,500 fine.
3 Land Transport Act, ss 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2) — maximum penalty three months’ imprisonment.
4 Sentencing Act 2002, s 71(1)(a) — maximum penalty three months’ imprisonment or $1,000 fine.
5 Crimes Act 1961, s 226(1)(a) — maximum penalty seven years’ imprisonment.
6 Crimes Act, s 196 — maximum penalty one year imprisonment.
spoke to someone there. The victim drove with the co-defendant in the passenger seat. Upon arrival, the victim was told to either pay the Mongols $14,000 or hand over his vehicle. The victim then signed a piece of paper under duress stating that he had handed his Ute over to the Mongols. He was told not to phone police.
Driving charges
[5] Further charges arose while Mr Moody was on bail on the conversion and assault charges. He was also subject to a sentence of intensive supervision and community work for an earlier charge of driving while disqualified (third or subsequent). On the night of 29 March 2025, Mr Moody was riding a motorcycle. He was observed by an unmarked patrol car zig zagging through traffic on Bealey Avenue. Police activated their red and blue flashing lights and sirens signalling Mr Moody to pull over. Mr Moody accelerated to approximately 110 kilometres per hour in a 50 kilometres per hour zone. As he approached another road user nearing a bend in the road, Mr Moody passed the vehicle on its inside and continued around the bend. Police subsequently located the motorcycle at Mr Moody’s address and inquiries revealed that the motorcycle was not fitted with an alcohol interlock device in breach of the conditions of his licence.
[6] Mr Moody also pleaded guilty to breaching a sentence of community work. He was sentenced to 200 hours of community work on 9 August 2024, after being convicted of driving while disqualified (aggravated). He had completed one hour of community work on 13 August and, as of 30 January 2025, had 199 hours outstanding on his sentence.
District Court Decision
[7] Given there is no issue with the starting points and adjustments made by the Judge, I refer only to the Judge’s reasoning for declining to commute the sentence.
The Judge found:7
[37] First, your history is absolutely abysmal in terms of driving and, to a lesser extent, dishonesty, although as I say, that goes back a good number of years. You have been given sentences of home detention on multiple
7 R v Moody [2025] NZDC 13873.
occasions in the past, and yet you have continued to offend in a similar way. You have essentially reached the point now where if you choose to put yourself and other people in danger by breaching the rules of the road and driving recklessly and in breach of your license conditions, you can expect to go to prison. It is really that simple.
[38] Further, I note that in 2022, there are three convictions for breaching home detention. Those in and of themselves would not necessarily be the end of my assessment, but they factor into it. And as I say, when I step back and look at all the purposes and principles of sentencing, in my view, the least restrictive outcome is a term of imprisonment.
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[9] Mr McKenzie, for the appellant, submits that Mr Moody’s sentence ought to have been commuted to home detention. First, he submits that the Judge erred in giving weight to Mr Moody’s driving history as Mr Moody had already served three months on remand and the maximum penalty for reckless driving is three months’ imprisonment. Secondly, Mr McKenzie submits that the Judge failed to weigh the seriousness of Mr Moody’s previous breaches of home detention and consider his subsequent compliance with a sentence of community detention. Finally, Mr McKenzie submits that the Judge failed to give any weight to the upcoming birth of Mr Moody’s child in September.
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
Respondent’s submissions
[10] Ms Fiennes, for the Crown, submits that there is no error in the Judge’s approach. She submits that the Judge appropriately weighed the purposes and principles of sentencing, and it was open to the Judge to find that Mr Moody’s appalling history of driving convictions required a deterrent sentence to be imposed. As to Mr Moody’s family circumstances, Ms Fiennes submits that the Judge was clearly aware of his circumstances as evidenced by the 10 per cent discount applied for parental incarceration. She submits that an inability to be with his partner in the three months following the birth of their child does not negate the principles of sentencing and the need for a deterrent sentence.
Analysis
[11] The sole issue on appeal is whether the Judge erred in declining to exercise his broad discretion not to commute the sentence of 21 months’ imprisonment to a sentence of home detention. As a starting point, a sentencing Judge has broad discretion reflecting the array of considerations that might require consideration in determining whether to commute a sentence of imprisonment to one of home detention.11
[12] The Judge determined that Mr Moody’s appalling history of driving offences and the fact that he continued to offend in a like manner, notwithstanding the Court having frequently stepped back from a sentence of imprisonment and imposing sentences of home detention in the past, meant the purposes and principles of sentencing required a sentence of imprisonment. I agree with that assessment.
[13] Mr Moody has previously been sentenced to no less than four terms of home detention. Those sentences were imposed on 4 August 2008, 18 February 2013, 8 June 2020 and 24 May 2022. He has three convictions for breaching home detention conditions. Those breaches arose when he was serving his most recent sentence of home detention. Notably, one of those breaches involved Mr Moody absconding from his home detention address and driving recklessly. In my view, those breaches are not
11 Palmer v R [2016] NZCA 541 at [19]; Aupouri v R [2019] NZCA 216 at [18].
outweighed by his later compliance with a short and less restrictive sentence of community detention.
[14] That Mr Moody continues to offend and, particularly, commit driving offences, indicates that home detention has been unsuccessful in assisting his rehabilitation, that sentence has failed to deter him from committing the same or similar offences and that it is a sentence that is not effective in protecting the community from the risk Mr Moody poses as a recidivist driving offender. I am satisfied the Judge appropriately weighed the necessary purposes and principles of sentencing.12
[15] Mr McKenzie focuses on the maximum penalty for the offence of reckless driving of three months, highlighting that Mr Moody had spent three months on remand by the time he was sentenced. He submits that Mr Moody had therefore effectively served the maximum sentence that he was liable to serve under law. That submission fails to recognise that Mr Moody’s custodial remand reflected not only the risk he posed of committing driving offences but also that he was facing other serious charges.
[16] By reference to the starting points adopted by the Judge, Mr McKenzie submits that consideration of proportionality required the Judge to impose a sentence that focused on the assault and conversion charges rather than the driving offending. Mr McKenzie concedes that if Mr Moody was facing the driving charges alone then a sentence of imprisonment was inevitable. He submits that if Mr Moody was facing the assault and conversion charges alone that a sentence of imprisonment may have been imposed but there would be good grounds to impose a sentence of home detention given Mr Moody has a limited history of violence. In my view the Judge was entitled to find that Mr Moody’s overall criminal history indicated that prior sentences of home detention (regardless of the particular offending) had not been effective in deterring him from continuing to offend nor facilitating his rehabilitation. I agree that proportionality is a relevant consideration in sentencing, but I am not persuaded that the aggravated driving offences committed by Mr Moody were of such low culpability that the Judge erred in placing weight on his driving history in
12 Sentencing Act 2002, ss 7 and 8.
declining to commute the sentence to one of home detention, notwithstanding that the driving charges made up a comparatively small proportion of the overall sentence.
[17] The further submission advanced by Mr McKenzie is that Mr Moody’s partner will give birth to their child in September and as matters stand, Mr Moody will not be present to assist his partner as they are required to move house or to support her after she has given birth. He submits that a sentence of home detention would assist in the child’s welfare and promote positive parenting on the appellant’s behalf. He acknowledges that the Judge allowed a parental separation deduction when quantifying the end sentence. He submits that factor ought to have been taken into account again when considering whether to commute the sentence to one of home detention.
[18] Although the Judge did not expressly refer to the upcoming birth in relation to the decision not to commute the sentence to home detention, the Judge was clearly alive to the relevant circumstances having applied a 10 per cent reduction for Mr Moody’s relationship with his two teenage sons, and his unborn child. I acknowledge that there may be circumstances where the Court determines that the birth of a child is a factor that significantly impacts on the exercise of the discretion to commute a sentence of imprisonment to one of home detention. It is a factor to be weighed alongside the other purposes and principles of sentencing.
[19] Mr Moody’s parenting obligations must be weighed against the persistent and significant risk his undeterred history of driving offending poses to the wider community. That is particularly so in Mr Moody’s circumstances, where he has two older children during whose lives he has frequently found himself imprisoned or subject to home detention for similar driving offences. He has first-hand experience of the impacts of parental incarceration on his children, yet he continues to offend. It is also notable that the present driving offending, which occurred while on bail for the assault and conversion charges, arose when Mr Moody’s partner was already pregnant. He breached his bail and committed further offences knowing that would put him at risk of a custodial remand and ultimately a sentence of imprisonment. That calls into question Mr Moody’s motivation to assist his partner in preparing for her upcoming birth. Mr Moody’s attitude and past behaviour undermines the submission that
parental incarceration was a factor that should have been afforded significant weight at sentencing.
[20] Ultimately, I find myself in agreement with the Judge that Mr Moody has very much reached the stage of his criminal offending that if he carries on the same path of choosing to drive, contrary to Court orders and particularly to drive recklessly or intoxicated or in breach of other conditions, then the most likely outcome will be a sentence of imprisonment.
Result
[21]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A J McKenzie, Barrister, Christchurch
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